State v. Richardson, 92-2400

• Decision Date: 02 July 1993
• Docket Number: No. 92-2400,92-2400
• Citation: State v. Richardson, 621 So.2d 752 (Fla. App. 1993)
• Parties: 18 Fla. L. Weekly D1539 STATE of Florida, Appellant, v. Larry RICHARDSON, Appellee.
• Court: Florida District Court of Appeals

Page 752

621 So.2d 752

18 Fla. L. Weekly D1539

STATE of Florida, Appellant, v.Larry RICHARDSON, Appellee.

No. 92-2400.

District Court of Appeal of Florida Fifth District.

July 2, 1993.

Rehearing Denied July 28, 1993.

Robert A. Butterworth, Atty. Gen., Tallahassee, and Kellie A. Nielan, Asst. Atty. Gen., Daytona Beach, for appellant.

James B. Gibson, Public Defender, and James R. Wulchak, Chief, Appellate Div., Asst. Public Defender, Daytona Beach, for appellee.

DIAMANTIS, Judge.

The State of Florida appeals the trial court's non-final order denying the state's motion to introduce evidence of collateral crimes committed by appelleeLarry D. Richardson and evidence of admissions made by Richardson.We affirm the trial court's order in part, reverse in part, quash in part, and remand for further proceedings.

On January 7, 1992, a grand jury indicted Richardson for first degree murder, ¹ armed robbery with a firearm, ² and burglary.³The indictment alleged that, on or about February 14, 1991, Richardson unlawfully entered the home of Carolyn Lee, robbed her of cash and personal property, and killed her by striking her with a skillet or hammer and shooting her with a handgun.

On May 21, 1992, the state filed a "motion for pretrial ruling regarding admissibility of Williams ⁴ rule testimony," in which it sought to introduce evidence of other crimes committed by Richardson, as well as admissions made by him.The trial court denied the state's motion, ruling that such evidence would not be allowed during the state's case-in-chief but reserving ruling on the admissibility of such evidence in the event Richardson raised some matter which would make the evidence relevant and material in rebuttal.

On appeal, the state contends that the trial court erred in excluding the following evidence:

(1) On February 11, 1991, Richardson had a firearm in his possession.⁵

(2) On February 12, 1991, Richardson murdered Kevin Floyd with a small-caliber, dark-colored handgun.⁶

(3) On February 13, 1991, Richardson called his father in Massachusetts and told him that he needed money to leave town because he had "just killed a man".

(4) Richardson's aunt, Rosa Lane, discovered that a small-caliber, dark-colored handgun was missing from her home.She last saw the gun on January 1, 1991.Richardson had access to his aunt's home.

(5) An analysis of the bullets which killed Floyd and Lee revealed that both came from a .22 caliber firearm (probably a revolver), were consistent in class characteristics, and could have come from the same firearm.

(6) When the police contacted Richardson on February 14, 1991, following the murder of Lee, Richardson stated that he was sorry he had come down to the police station; that he had been in the process of packing his bags to leave; and that, had he continued his packing and left, the police would never have found him.⁷

The state contends that the evidence that Richardson had access to a small handgun, that he killed Floyd with a small handgun, and that he needed money to leave town after killing Floyd was relevant to show Richardson's motive in robbing and killing Lee.Additionally, the state contends that the evidence was relevant to establish the entire context out of which the criminal episode occurred, identity, opportunity, and common scheme.

We first must address the appealability of the trial court's order.Florida Rule of Appellate Procedure 9.140(c)(1)(B) permits the state to appeal orders

suppressing before trial confessions, admissions, or evidence obtained by search and seizure.

Pursuant to rule 9.140(c)(1)(B), we conclude that the state may appeal the trial court's order to the extent that the order suppresses the admissions of Richardson made to his father(item 3) and to the police (item 6).SeeState v. Brea, 530 So.2d 924(Fla.1988);State v. Palmore, 495 So.2d 1170(Fla.1986).See alsoState v. Hale, 505 So.2d 1109(Fla. 5th DCA1987);State v. Langer, 490 So.2d 1019(Fla. 5th DCA1986);State v. Evans, 462 So.2d 596(Fla. 5th DCA1985).We also conclude that, because the murder of Floyd (item 2) is intertwined with the admission of Richardson to his father that he needed money to leave town because he had killed a man (item 3), the state may appeal the suppression of item 2 under rule 9.140(c)(1)(B).The murder of Floyd clarifies and explains Richardson's admission to his father the next day.

Alternatively, even assuming that the trial court's order suppressing evidence of the Floyd murder is not appealable as a matter of right, we recognize that the state may seek common law certiorari review of the trial court's order regarding this evidence as well as the evidence contained in items 1, 4, and 5.State v. Pettis, 520 So.2d 250, 253(Fla.1988).See alsoState v. Brea, 530 So.2d 924, 926(Fla.1988);State v. Smith, 586 So.2d 1237, 1238 n. 3(Fla. 2d DCA1991).Accordingly, consistent with the principles pronounced in Pettis, we grant common law certiorari in this case in order to afford the state a full review of the trial court's order regarding items 1, 4, and 5.

In Ruffin v. State, 397 So.2d 277(Fla.), cert. denied, 454 U.S. 882, 102 S.Ct. 368, 70 L.Ed.2d 194(1981), the supreme court described the test for admissibility of evidence of collateral crimes:

In Williams v. State, we announced a broad rule of admissibility based upon relevancy....[W]e declared that any fact relevant to prove a fact in issue is admissible into evidence even though it points to a separate crime unless its admissibility is precluded by a specific rule of exclusion.We further held that evidence of collateral offenses is inadmissible if its sole relevancy is to establish bad character or propensity of the accused.We emphasized that the question of relevancy of this type of evidence should be cautiously scrutinized before it is determined to be admissible, but that nonetheless relevancy is the test.Evidence of other crimes is relevant if it casts light on the character of the crime for which the accused is being prosecuted.For example, this evidence is relevant when it shows either motive, intent, absence of mistake, common scheme or plan, identity, or a system or general pattern of criminality.

Ruffin, 397 So.2d at 279-280.⁸

Where the state demonstrates that evidence of separate criminal activity is relevant to the charged offense, the trial court still may exclude such evidence on the grounds that its prejudicial impact outweighs its probative value.Henry v. State, 574 So.2d 73, 75(Fla.1991);State v. Vazquez, 419 So.2d 1088, 1090(Fla.1982);Straight v. State, 397 So.2d 903, 909(Fla.), cert. denied, 454 U.S. 1022, 102 S.Ct. 556, 70 L.Ed.2d 418(1981).SeeSec. 90.403,Fla.Stat.(1991).Because evidence of collateral crimes is inherently prejudicial, however, such evidence should not be excluded merely because of its prejudicial nature.Before the trial court excludes such evidence, the probative value of the evidence must be "substantially outweighed by the danger of unfair prejudice."Bryan v. State, 533 So.2d 744, 747(Fla.1988), cert. denied, 490 U.S. 1028, 109 S.Ct. 1765, 104 L.Ed.2d 200(1989)(citingSec. 90.403,Fla.Stat.(1983)).Unfair prejudice results where the state makes the collateral offense a feature instead of an incident of the trial.Heiney v. State, 447 So.2d 210, 213(Fla.), cert. denied, 469 U.S. 920, 105 S.Ct. 303, 83 L.Ed.2d 237(1984).Thus, the state's presentation of evidence of the collateral offense must not transcend the bounds of relevancy to the offense being tried.Ruffin, 397 So.2d at 280;Williams v. State, 117 So.2d 473, 475(Fla.1960).

Evidence of collateral crimes may be admissible to establish the entire context out of which the alleged criminal conduct arose.Ruffin, 397 So.2d at 281;Smith v. State, 365 So.2d 704, 707(Fla.1978), cert. denied, 444 U.S. 885, 100 S.Ct. 177, 62 L.Ed.2d 115(1979).Cases admitting such evidence have focused on the time frame in which the offenses occurred and the causal connection between the offenses.Smith, 365 So.2d at 707.For example, collateral crime evidence may be admissible where the offenses occurred as part of one prolonged criminal episode, id., or where the offenses were an integral part of the factual context in which the charged crimes occurred.Craig v. State, 510 So.2d 857, 863(Fla.1987), cert. denied, 484 U.S. 1020, 108 S.Ct. 732, 98 L.Ed.2d 680(1988).Evidence of collateral crimes also may be admissible if relevant to prove identity or modus operandi.In Drake v. State, 400 So.2d 1217(Fla.1981), the supreme court stated that

The mode of operating theory of proving identity is based on both the similarity of and the unusual nature of the factual situations being compared.A mere general similarity will not render the similar facts legally relevant to show identity.There must be identifiable points of similarity which pervade the compared factual situations.Given sufficient similarity, in order for the similar facts to be relevant the points of similarity must have some special character or be so unusual as to point to the defendant.

Drake, 400 So.2d at 1219.See alsoWilson v. State, 490 So.2d 1062, 1064(Fla. 5th DCA1986);Sias v. State, 416 So.2d 1213, 1215(Fla. 3d DCA), rev. denied, 424 So.2d 763(Fla.1982).

In State v. Lee, 531 So.2d 133(Fla.1988), the defendant was charged with, inter alia, kidnapping, sexual battery, and robbery while armed with a handgun.At trial, the state introduced evidence that the defendant had robbed a bank while armed with a handgun later on the same day the charged offenses were committed.The defendant's conviction was reversed by the supreme court, which noted that

It was not established that the gun used during the bank robbery was the gun used during the offenses at issue.Furthemore [sic], the mere fact that a gun was used during the bank robbery does not establish that [the defendant] used a gun during the charged offenses under...